Dismissed

Mani George Rep by Poa Mohan J.Thomas v. Skyline City Park, Apartment Owners Association.

Kerala HC7 Nov 2016RSA/1001/2016

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a second appeal filed by an apartment owner. The court upheld the lower appellate court's decree allowing the Apartment Owners Association to recover maintenance dues and late fees via a civil suit. The court ruled that the bylaw provisions were valid and established liability under the Indian Contract and Evidence Acts.

What did the court decide?

The regular second appeal was dismissed; all pending interlocutory applications were closed.

Mani George Rep by Poa Mohan J.Thomas Vs Skyline City… — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

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RSA.No. 1001 of 2016 (C)

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AGAINST THE JUDGMENT AND DECREE DATED 23-12-2015 IN AS 28/2011 of I ADDL.SUB COURT, ERNAKULAM

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AGAINST THE JUDGMENT AND DECREE DATED 30-10-2010 IN OS 920/2009 of II ADDL.MUNSIFF COURT, ERNAKULAM

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APPELLANT(S)/RESPONDENT IN AS/DEFENDANT:

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MANI GEORGE, AGED 60 YEARS, S/O.GEORGE MANI, RESIDING AT 10-D, OAKWOOD, SKYLINE CITY PARK APARTMENT, JAWAHAR NAGAR, KADAVANTHRA, KOCHI-682020, REPRESENTED BY POWER OF ATTORNEY HOLDER MOHAN J THOMAS, AGED 63 YEARS, S/O.JOSEPH K MANI, EARLIER RESIDING AT FLAT NO. 7B, ASTER PLACE, LISSIE HOSPITAL, PULLEPADY ROAD, KOCHI-682018, NOW HAVING ADDRESS AT PLOT NO 177, SCHOOL ROAD, GIRI NAGAR(NEAR COMMUNITY HALL) KADAVANTHRA, COCHIN-682020.

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BY ADVS.SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SEI.M.VARGHESE VARGHESE SMT.UMA R.KAMATH SMT.S.SANDHYA SRI.BEPIN PAUL SMT.SIKHA S.NAIR

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RESPONDENT(S)/APPELLANT IN AS/PLAINTIFF:

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SKYLINE CITY PARK, APARTMENT OWNERS ASSOCIATION REPRESENTED BY ITS PRESIDENT GEORGE VARKEY , AGED 49 YEARS, OW-7D, SKYLINE CITY PARK, JAWAHAR NAGAR, COCHIN-682020.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.1001 of 2016

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Dated this the 7^th day of November, 2016

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JUDGMENT

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~ ~ ~ ~ ~

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The appellant is the plaintiff in O.S.No.920/2009 of the II Additional Munsiff's Court, Ernakulam and the appellant in A.S. No.28/2011 of the Sub Court, Ernakulam. The plaintiff is an Association of 168 members being the owners of 171 apartments under the apartment scheme known as “Skyline City Park” in Jawahar Nagar, Kochi. The said Association is registered under the provisions of the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955. The defendant is one of the members of the said Association who owns apartment No.10D in the apartment building known as “Oakwood”. For the continued maintenance of the common facilities and beneficial enjoyment of individual apartment, each apartment owners shall be liable to pay maintenance charge as per the bylaw and covenant of sale deed. The income of the Association for the maintenance is from monthly maintenance fee collected from its members/apartment owners. As per the

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RSA.1001/16-C :2:

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bylaw, the Association can impose late fee on owners to avoid defaults. According to the plaintiff Association, despite issuance of statement and demands and reminders including the bill dated 01.06.2009 and the statement of account as on 27.8.2009, the defendant has not discharged the dues towards maintenance fee account maintained in his name. The amount, thus remaining due and payable by the defendant to plaintiff, after adjusting all amounts paid by the defendant comes to Rs.86,832/- including late fee as on 27.8.2009. Thus, the plaintiff is entitled to recover the said amount from the defendant and the suit has been filed for the same.

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The defendant contended that he was making prompt payment of annual maintenance charges on several occasions and also late fee. According to the defendant, the allegation that despite the issuance of statement and demands and reminders including the bill dated 01.06.2009 and the statement of account as on 27.08.2009, the defendant had not discharged the dues towards maintenance fee account in his name, is untrue and false. Ever since the defendant took possession of the apartment

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RSA.1001/16-C :3:

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he and his members were in USA. Late monthly maintenance charges were being paid in lump sum. However, due to non receipt of demand notice, maintenance charges could not be remitted exactly on time as stipulated. It is further contended that the late fee as claimed in the plaint works out to be 65% of the monthly maintenance charge is totally illegal and arbitrary and against public policy and therefore not enforceable. The amount due from the same as maintenance charge is only Rs.20,350/-. When he offered the said amount, the President of the Association refused

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to accept the amount offered by the defendant. Thereafter, when he entered into the apartment in July 2009, it was observed that somebody caused mischief in the apartment. Even though the said matter was immediately informed to the office of the Manager, nobody has taken care to enquire into the matter and due to the mischief committed in the apartment he had suffered loss to the tune of more than Rs.1 lakh. According to the defendant, even though he is liable to pay an amount of Rs.20,350/-, he is not liable to pay late fee as demanded by the plaintiff and the said claim of late fee claimed is arbitrary, illegal

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RSA.1001/16-C :4:

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and unsustainable under law.

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On the above pleadings both parties adduced evidence. After analysing the evidence on record, the trial court dismissed the suit, on a finding that the plaintiff is not entitled to realise the amount by filing a civil suit. The trial court was of the view that there is no provision in the bylaw, which enables the Association, to institute the suit for recovery of monthly maintenance charges and late fee. The only remedy available to the Association, in case of default in payment of maintenance charges, is denial of common amenities and common facilities to the defendant. But, in appeal, the lower appellate court set aside the finding of the trial court that the plaintiff has no right to realise the amount due from the defendant, by filing a civil suit and decreed the suit as prayed for. The cross objection filed by the defendant was also dismissed. The appellate court decreed the suit, allowing the plaintiff to realise Rs.86,832/- from the defendant and his assets.

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Heard the learned counsel for the appellant.

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The first question that arises for consideration is

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RSA.1001/16-C :5:

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whether the lower appellate court is justified in finding that the plaintiff has right to institute a civil suit for realisation of the amount due from the defendant. It is trite law that where there is a civil right and a corresponding liability, the right can be enforced by resorting to civil suit as provided under Section 9 of the Code of Civil Procedure. The civil court has jurisdiction to try such suit of civil nature excepting suit of which their cognizance is either expressly or impliedly barred under Section 9 of the C.P.C. In the instant case, neither Ext.A1 bylaw nor Ext.B2 sale deed by which the defendant purchased the apartment bars institution of civil case against the defendant. In the above view, the lower appellate court is justified in finding that the suit is maintainable and the plaintiff has right to institute the suit, for realisation of the amount due from the defendant.

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On a marshalling of the admitted facts, it could be seen as follows:-The defendant himself admitted that he is a member of the plaintiff Association and he is bound by the provisions under Ext.A1 bylaw. It is apparent from the covenant made by the plaintiff in Ext.C2 sale deed, for

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RSA.1001/16-C :6:

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joining the Association of apartment owners that the defendant shall pay expenses for maintenance and common amenities, as may be fixed by the Association. As per clause 13(b) of Ext.A1 bylaw, members who do not pay monthly charges before 5^th of the respective months will be charged a default fee of Rs.100/- per month of delay. If any member is in arrear of more than three months in payment of maintenance charges or other charges, he shall be denied of the common amenities to the apartment. Ext.A1 is not disputed by the defendant.

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The learned counsel for the appellant advanced arguments challenging the realisation of default fee of Rs.100/- per month for delay. It is contended that the said provision is arbitrary, illegal and hit by Section 74 of the Indian Contract Act. It is further contended that the default fee is more than the principal amount. There, it cannot be treated as reasonable as contemplated under Section 74 of the Contract Act.

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Going by Ext.B2 sale deed, it is seen that a large number of conditions are imposed and the vendee has the obligation to meet all the common expenses for

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RSA.1001/16-C :7:

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maintaining the common amenities provided in the apartment complex. Even though the trial court also arrived at a finding that the defendant was liable to pay monthly maintenance charge and late fee and the suit was dismissed on the sole reason that there is no provision in the bylaw which enables the plaintiff Association to institute a suit for recovery of monthly maintenance charges and late fee thereon by instituting a civil suit. Suffice to say, where a person has become a member of an Association, it is incumbent upon him that he must act in adherence to the provisions under the bylaw of that Association. Rs.100/- is quantified as default charge in case default in payment of maintenance charge. This Court is of the view that the said quantified default charge will not come under the damage specified under Section 74 of the Contract Act. So the argument pointing out Section 74 of the Contract Act is rejected.

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Ext.A1 is the bylaw approved by the members of the Association and the defendant also took membership after knowing fully well the provisions of the bylaw. So, he is liable to act in adherence to the provisions of the bylaw

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RSA.1001/16-C :8:

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and after taking membership he cannot contend that the provisions are arbitrary and illegal. When DW1 was examined, he also admitted that the defendant has the obligation to pay monthly maintenance charge with default fee. The contention of the plaintiff that the defendant left the apartment locked without intimation to Association and he did not care to pay monthly maintenance charges is more probable to believe. In view of the deposition of DW1, DW1 does not know whether all electricity bills and tax intimations will be communicated to apartment owners in the respective apartment address or not. It is pertinent to note that the defendant has stayed away from entering into the witness box, so as to provide an opportunity to the plaintiff to cross-examine him as to his allegations against the plaintiff. So an adverse inference under Section 114(g) of the Indian Evidence Act of the Evidence Act can be drawn against the defendant; i.e., the evidence which could be and is not produced would, if produced, be unfavourable to the person who withhold it. I do not find any kind of perversity in the appreciation of evidence of the lower

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RSA.1001/16-C :9:

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appellate court; but, the trial court failed to consider the law and evidence in its correct perspective.

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It has come out in evidence that the plaintiff has defaulted to pay maintenance charge for more than three years. Therefore, as per Ext.A1 bylaw, he is liable to pay the said amount with default charge as provided under Clause 13 of the said bylaw and the plaintiff has right to file a civil suit for realising the said amount from the defendant. I do not find any kind of illegality or impropriety in the findings, whereby the lower appellate court set aside the findings of the trial court and decreed the suit as prayed for. No question of law arises for consideration.

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This Regular Second Appeal will stand dismissed.

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All pending interlocutory applications will stand closed.

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Sd/K.HARILAL, Judge.

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okb

Mani George Rep by Poa Mohan J.Thomas v. Skyline City Park, Apartment Owners Association.

Case brief

What is this about?

What did the court decide?

Mani George Rep by Poa Mohan J.Thomas v. Skyline City Park, Apartment Owners Association.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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